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2016 DIGILAW 1999 (HP)

Hari Chand v. Hon’ble High Court of HP

2016-09-19

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Mansoor Ahmad Mir, J. By the medium of this writ petition, the petitioner has come out of deep slumber after 34 years. On the last date of hearing, the learned counsel for the petitioner was asked to justify the maintainability of the writ petition, to explain the delay and laches, was not in a position to do so. Today, the learned counsel for the petitioner prayed that notice be issued to the respondents. 2. Mr. Rajnish Maniktala, Advocate, appears and prayed that the petition be dismissed in limine. 3. We have gone through the writ petition. The petitioner has not explained the delay of one day’s, not to speak of 34 years. 4. It is beaten law of land that delay takes away the settings of law. A person who does not seek relief within time, his petition has to be dismissed only on the grounds of delay and laches, otherwise, it would amount to gross misuse of jurisdiction and disturb the settled position. 5. The Apex Court in a case titled as R & M Trust versus Koramangala Residents Vigilance Group and others, reported in (2005) 3 SCC 91 , held that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution; delay defeats equity and it cannot be brushed aside without any plausible explanation. It is apt to reproduce para 34 of the judgment herein: “34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third-party interest created on account of delay. Even otherwise also why should the Court come to the rescue of a person who is not vigilant of his rights?” 6. The Apex Court in cases titled as S.D.O. Grid Corporation of Orissa Ltd. and others versus Timudu Oram, reported in 2005 AIR SCW 3715, and Srinivasa Bhat (Dead) by L.Rs. & Ors. versus A. Sarvothama Kini (Dead) by L.Rs. & Ors., reported in AIR 2010 Supreme Court 2106, has also discussed the same principle. It is profitable to reproduce para 9 of the judgment in Timudu Oram's case (supra) herein: “9. In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty. It is profitable to reproduce para 9 of the judgment in Timudu Oram's case (supra) herein: “9. In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of this Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others (supra), 1999 AIR SCW 3383 : AIR 1999 SC 3412 . The High Court has also erred in awarding compensation in Civil Appeal No. …........... of 2005 (arising out of SLP (C) No. 9788 of 1998). The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under Article 226 cannot be justified.” 7. It would also be apt to reproduce para 39 of the judgment rendered by the Apex Court in Bhakra Beas Management Board versus Kirshan Kumar Vij & Anr., reported in AIR 2010 Supreme Court 3342, herein: “39. Yet, another question that draws our attention is with regard to delay and laches. In fact, respondent No. 1's petition deserved to be dismissed only on that ground but surprisingly the High Court overlooked that aspect of the mater and dealt with it in a rather casual and cursory manner. The appellant had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the said relief. But the High Court has simply brushed it aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal.” 8. But the High Court has simply brushed it aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal.” 8. The Apex Court in the case titled as State of Jammu & Kashmir versus R.K. Zalpuri and others, reported in JT 2015 (9) SC 214, held that a Writ Court while deciding a writ petition, is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. It is apt to reproduce paras 26 to 28 of the judgment herein: “26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court. 27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "Deo gratias" - 'thanks to God'. 28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless noninterference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present.” 9. This Court also in LPA No. 48 of 2011 titled Shri Satija Rajesh N. vs. State of Himachal Pradesh and others decided on 26.8.2014, LPA No. 150 of 2014 titled Mr. This Court also in LPA No. 48 of 2011 titled Shri Satija Rajesh N. vs. State of Himachal Pradesh and others decided on 26.8.2014, LPA No. 150 of 2014 titled Mr. Inderjit Kumar Dhir versus State of H.P. and others, decided on 17th September, 2014, batch of LPAs lead case of which is LPA No. 107 of 2014 titled Amit Attri and others versus Anil Verma and others decided on 3rd December, 2014 and LPA 270 of 2010 titled Bhim Sen Sharma versus HP University and another decided on 2nd May, 2016, has laid down the similar principles of law. 10. Having said so, the petition is dismissed in limine, alongwith pending applications, if any.